Speybroeck v. State, 25086.

• Decision Date: 23 November 1926
• Docket Number: No. 25086.,25086.
• Parties: SPEYBROECK v. STATE.
• Court: Indiana Supreme Court

198 Ind. 683

154 N.E. 1

SPEYBROECK

v.STATE.

No. 25086.

Supreme Court of Indiana.

Nov. 23, 1926.

Appeal from Superior Court, St. Joseph County; Lenn J. Oare, Judge.

Marcel Speybroeck was convicted of possessing a still, manufacturing liquor, and maintaining a common nuisance, and he appeals. Affirmed.

Coughlin & Paden and John G. Yeagley, all of South Bend, for appellant.

Arthur L. Gilliom, Atty. Gen., and George J. Muller, Jr., Deputy Atty. Gen., for the State.

GEMMILL, C. J.

The appellant and another were jointly charged by affidavit, in three counts, with violation of the prohibition law. The crimes charged were unlawful possession of a still, unlawful manufacture of intoxicating liquor, and maintaining a common nuisance. Sections 6, 4, and 24, c. 48, Acts 1925 (sections 2719, 2717, and 2740, Burns' 1926). The appellant entered a plea of not guilty. He was tried separately by a jury and was found guilty on each count. His motion for a new trial was overruled, and judgment was rendered on each of the three verdicts.

It is assigned as error that the court erred in overruling the motion for a new trial. The causes for a new trial, now relied upon by appellant, relate to the admission of evidence. He insists that the search, under which the evidence, to which he objected and excepted, was secured, was illegal. The first reason for this contention is that the search warrant was served by a member of a horse thief detective association, who claimed to be a constable, but who was not a legal officer and who had no authority to serve same; and the second reason is that the description in the search warrant was not sufficient. Appellant testified that he had no interest in the premises which were searched, that he was never on the said premises, and that he never owned or had possession of the two stills and ten jugs of moonshine whisky which were found there and introduced in evidence.

[1] It is well settled that a defendant cannot avail himself of an objection to the legality of the search of a place with which he had no connection, or of the seizure of property, in which he had no interest. Blakemore, Prohibition, 368, § 112; Thorpe, Prohibition and Industrial Liquor, § 831; Cornelius, Search and Seizure, 75, § 17; Earle v. State (1924) 194 Ind. 165, 142 N. E. 405;Walker v. State (1924) 194 Ind. 402, 142 N. E. 16;Snedegar v. State (1925) 196 Ind. 254, 146 N. E. 849, 147 N. E. 918;Hines v. State (Ind., 1926) 150 N. E. 371;Weber v. Commonwealth (1924) 202 Ky. 499, 260 S. W. 1;McCarty v. Commonwealth (1923) 200 Ky. 287, 254 S. W. 887;Chicco v. United States (C. C. A., 1922) 284 F. 434;Jones v. United States (C. C. A., 1924) 296 F. 632;Remus v. United States (C. C. A., 1923), 291 F. 501;Goldberg v. United States (C. C. A., 1924), 297 F. 98.

[2] Appellant argues that the verdict of guilty carried with it and merged a finding that he had an interest in the property searched, and therefore he should not be estopped from objecting to the evidence secured by virtue of the search which, he says, was illegal. His right to object to the legality of the search depends upon section 11, article 1 of the state Constitution (section 63, Burns' 1926), which provides:

“The right of the people to be secure, in their persons, houses, papers, and effects, against unreasonable search or seizure, shall not be violated.”

The appellant, as a witness in his own behalf, having declared that he was not the owner or in possession of the place searched or the property there found by the search, is bound by said statements. In Goldberg v. United States, supra, the Circuit Court of Appeals held that the defendant could not avail himself of an...